Police Liability and Litigation

Reviewing and analyzing police use of deadly force

As long as the facts known to the officer at the time of their decision to use force were objectively reasonable, then the use of force will be lawful

Police officers are always being scrutinized. There are no illusions on the part of any experienced officer that his/her actions will not reverberate beyond the immediate scene of an incident. It is an accepted part of the job, an expectation for which every officer must be prepared. Police officers have to articulate, explain and justify their actions, a failure to adequately do so can lead to release of a suspect, civil liability or, in the extreme, criminal charges. This latter possibility is more likely to occur with an officer’s use of force, particularly deadly physical force.

Recent research on police policy and practices led me to a 1985 article in the Policy Studies Review that focused on police use of deadly force. The opening paragraph is as relevant today as it was in 1985:

Over the past two decades, one of the police practices discussed most frequently is the use of deadly force by law enforcement officers. Deadly force, especially the discharging of a firearm by a police officer that results in, or could lead to, the death of nonpolice personnel, is an issue of considerable controversy, and one that is structured around a number of important dimensions. First, as a society we give the police authority to use deadly force. This power distinguishes the police from any other agency or organization (Walker, 1983, p. 61). Police officers have at their disposal the capacity to act as judge, jury and executioner. But even with this grant of authority, it represents a decision of such significance that any time an officer uses deadly force there is a questioning of its appropriateness and in some circumstances its application is found to be unjustified.1

Related feature

To successfully combat a use of force lawsuit, an officer must do two things. First, and most importantly, the officer needs to be right (i.e., reasonable) in the use of force. Second, the officer must carefully and clearly document why he/she was right and reasonable.

In the next paragraph of the article the authors cite past statistics on the killing of individuals by police. From 1949 to 1976 there was an average of 283 individuals shot and killed by police annually.2 The yearly range varied from a low of 184 in 1962 to a high of 409 in 1971 with a yearly variation of 250-300 up to 19763. Some further online research yielded a March 2001 publication from the Bureau of Justice Services, “Policing and Homicide, 1976-98: Justifiable Homicide by Police, Police Officers Murdered by Felons,” which provided more in-depth research and analysis4. The study reinforced the numbers I had gathered from two sources, the FBI Uniform Crime Reports and the Officer Down Memorial Page (ODMP), for the years 1991-2008 and filled in the gap of police officer justifiable use of force from 1977-1990.

The eighteen year period of 1991-2008 indicated an average of 358 justifiable homicides by police each year with highs in 2006 of 386 and in 2007 of 3985. The prior fourteen year period from 1977-1990 also saw an average of 358 justifiable homicides with a high of 457 in 1980. The initial implication would be that police officers have become increasingly deadly in the 80’s, 90’s and millennium decades. This would certainly be an argument various anti-police groups would wish to sustain. With my curiosity now ignited by the BJS study and its findings I gathered some additional numbers for the years 1949 to 1976 and 1998 to 2008 on police officer deaths6. From 1949 to 1976 the number of police officers killed in the line of duty from gunfire was an average of 98 a year with a low of 60 in 1962 and an astounding high of 144 in 19757. The year 1975 was the culmination of a particularly brutal assault on law enforcement in the United States which saw officer homicides by gunfire at staggering rates:

1971 – 140 1972 – 121 1973 – 142 1974 – 140

The twelve-year period from 1969 to 1980 was particularly deadly, with an average of 117 officer homicides by non-accidental gunfire each year. The correlating number of civilians justifiably killed by police still hovered in the 250-300 range. Focusing now on the period from 1991 to 2008, wherein police justifiable killings of civilians climbed to the 300-400 range, with the five year period of 2004-2008 seeing the average spike to 374 per year, the number of police deaths by gunfire in the same eighteen year period dropped to 60 per year and to 53 per year from 2004-2008.

The BJS study found that officer homicides were in fact dropping each successive decade since the 1970’s8. This is a factor that police detractors would point to as a demarcation point in their argument that present day police officers are trigger-happy9. I am reminded, though, of the immortal quote attributed to the British statesman Benjamin Disraeli that there are three types of lies: lies, damn lies, and statistics.

My own statistics by no means meet the research standards of my university colleagues who are trained criminologists more adept at conducting a comprehensive numerical study to arrive at a research hypothesis. Yet, I think my numbers are pretty solid — basic mathematics I can do — and my goal is somewhat different from the criminologist’s. As a lawyer I am trying to de-construct a potential argument that police use of deadly physical force has become a problem which must be contained. What these statistics cannot account for are outside variables such as improved police training including tactical street survival skills and the advent of the profession-wide use of body armor.

The use of body armor has been especially effective in the decrease of officer deaths by gunfire. The National Institute of Justice (NIJ) undertook extensive testing of police vests in 1975 which culminated in a 1976 report. Shortly thereafter the use of body armor slowly came to be more broadly utilized by our nation’s officers. The NIJ website on body armor indicates that since the mid-70s the use of body armor has saved over 3,000 officer’s lives11.

Quick math puts this number at a little over 100 officers per year during a 30 year period. That is simply 100 less names per year to the 1991 to 2008 average of 60 officers annually killed by non-accidental gunfire. This in turn puts the increase in police justifiable killings of civilians in a different perspective, police are arguably being fired upon or confronted with deadly physical force at an increasing rate. The point of this whole number exercise is simple; there should never be a rush to judgment on police officer use of deadly force. There are too many variables to consider.

However, mindful as we are of the dangers, police officers need to fully comprehend the use of deadly force and the legal aftermath. In November 1985, when the Policy Studies Review article was published, the U.S. Supreme Court opinion in Tennessee v. Garner had been released just nine months prior. At the time of its writing the authors indicated that only seven states followed the Model Penal Code approach to the use of deadly physical force12. A majority of states then followed the common law approach which allowed for the use of deadly physical force whenever necessary to affect an arrest which included apprehension of a fleeing felon.

In the post-Garner years the Model Penal Code approach has become the preferred policy and standard in assessing criminal liability13. The effect of the Model Penal Code definition was to restrain the use of weapons which are capable of causing serious physical injury14. Garner provided that the use of deadly force against an individual was a seizure subject to the Fourth Amendment. Four years later the Supreme Court announced in Graham v. Connor, 490 U.S. 386 (1989) that the proper analysis of police excessive use of force claims was under the Fourth Amendment’s “objective reasonableness” standard. In assessing civil liability for use of force police executives need to ensure that agency policy follows the Garner and Graham decisions. Equally important is the Model Penal Code standard if it is the law in your particular state, especially when considering any potential criminal liability that may result. It is not uncommon to find agency policy that is at odds with state law on the defense of justification. If this is the case then policy revision is necessary since a reliance on agency policy will not suffice if there is a violation of state law.

I have a genuine concern over the perception of police use of deadly force and the illogical means the public (and those who are antagonistic to law enforcement) will go to vilify any use of force by police. Recent national news stories involving some questionable police shootings and deaths at the hands of officers armed with TASERs have provided fodder for those seeking to criminalize every encounter an officer has with an individual. The law supports use of deadly force when clearly necessary.

Even in situations when — in hindsight — the use of deadly force may not have been necessary, the law protects the judgment of the officer who had to make the snap, on-the-spot decision to use deadly force. As long as the facts known to the officer at the time of his decision to use force were objectively reasonable then the use of force will be lawful. We have witnessed this in the aftermath of shootings wherein suspects had toy guns or an object that appeared to be a gun. Split-second judgments will not be second guessed by the courts but neither will they be the basis for justification if the use of deadly force is objectively unreasonable.

There has been an intuitive sense among career police officers that business is heating up. I started sensing it myself in 2005 continuing to my retirement in late 2007. I witnessed this increase firsthand when fellow officers I knew were shot in 2005, 2006, and 2007. Luckily they survived — two of them the benefactors of body armor, the third by the strength of his mind, character, and body.

I’ve been more of a passive witness to the increase in the years since but no less removed as a police attorney and law enforcement contributor. Individuals are now more willing to use guns against each other than they had been in the past and this in turn increases a willingness to use them against police officers. The tragic ending months of 2009 and beginning months of 2010 have given us steady reminders of that willingness. This phenomenon is not based on any statistical method or regression analysis but on pure experience and hand-on-the-pulse analysis.

As I wrote this article on a clear sunny Friday during the long Easter weekend I had an unexpected but stark reminder of this reality as my wife and I took a walk along the quiet streets of our beloved Cooperstown, NY, home of the National Baseball Hall of Fame and our get-away retreat. At 3:10 p.m. in the afternoon on Good Friday, shortly after the village church bells chimed for the holy hour, a 16-year-old kid who left home with his parents’ car and a .22 caliber rifle chased a classmate across Main Street into the doorway of the village police station where he shot the other teenager. A lone police officer was on duty as the wounded teenager ran into the station.

Not knowing what was going on, the officer ordered the wounded teenager on the ground and then focused on the teenage gunman who was standing outside the police department with his loaded rifle. As the officer ordered the gunman to drop the weapon the suspect raised the gun and shot himself under the chin. All of this as parents and children visiting America’s self-professed “most perfect village” watched, a baseball toss from the Hall of Fame and a block from the fabled shores of James Fenimore Cooper’s “Glimmerglass Lake.”

This is an area where the last homicide occurred 25 years prior and no one can remember a police officer ever shooting anyone. The victim and the perpetrator will both live and the officer will hopefully be recognized for his professional response. The officer exercised the same restraint in the justifiable use of deadly force that police officers across the country exercise each day.

But the non-use of deadly force is not a reportable event under the FBI UCR or any other database. We never know the actual number of times an officer could have used deadly force but did not do so. This is just another variable in the statistics.

The use of force — deadly force as it were — would have been reasonable under the circumstances described above. Probable cause was clearly evident. There is no such thing in these circumstances as shoot-to-wound or use of an available lesser-means-of-force. Nor is there room for political second guessing or cheap constituent pandering as New York’s embattled Governor Patterson once tried in suggesting that police be trained to wound.

What is always required in the aftermath of a deadly force incident is a comprehensive investigation where the rules of law are applied, which includes observation of the officer’s constitutional rights and other legal protections the officer may be afforded. This is no more than any criminal suspect is constitutionally provided.

Admittedly, police officers are held to a higher standard but that standard does not dilute all protective rights. It is the rule of law that matters and whether the officer’s actions met the legal standard. Neither politics, emotion, personal agenda, ideology or deep seated animus have any business in the conclusion as to whether or not a police officer’s use of deadly force is lawful. Officers who adhere to their training and agencies that have sound and up-to-date use of force policies in place should never have to fear the specter of cheap politics and grandstanding.

FOOTNOTES

1 “Deadly Force as a Policy Problem in Local Law Enforcement: Do Administrative Practices Make a Difference?” G. Larry Mays and William A. Taggart, Policy Studies Review, November 1985, Vol. 5, No. 2. 2 Taggart, 309 3 Taggart, 309 4 http://bjs.ojp.usdoj.gov/content/pub/pdf/ph98.pdf5 FBI Uniform Crime Reports 6 The 2001 BJS study conducted by BJS statisticians Jodi M. Brown and Patrick A. Lyons, Ph. D. already covered police officer homicides from 1976-1998 7 Officer Down Memorial Page8 The study actually placed the number as follows: the chances of a police officer being murdered in the line of duty was: 1 in 4,000 in 1978, 1 in 6,000 in 1988 and 1 in 11,000 in 1998. The BJS study also provided the following statistical correlation: “From 1976 to 1998 the U.S. population age 13 or older grew by about 47 million people and the size of the police force in the U.S. grew by over 200,000 officers, but the number of felons justifiably killed by police did not generally rise.” Similarly the number of officers murdered did not rise. 9 This line of reasoning would not find any support in the BJS study which indicated that, “[T]here is little correspondence between the trends in the murder of police officers and trends in justifiable homicides by police.” 10 The BJS study cited better training, better communication and better police practices as factors not able to be measured which would have lead to lower officer murder rates. 11 www.ojp.usdoj.gov/nij/topics/technology/body.armor12 Model Penal Code § 3.11. Definitions (2) "deadly force" means force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily injury. Model Penal Code § 3.07. Use of Force in Law Enforcement. (1) Use of Force Justifiable to Effect an Arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest. (2) Limitations on the Use of Force. (a) The use of force is not justifiable under this Section unless: (i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and (ii) when the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid. (b) The use of deadly force is not justifiable under this Section unless: (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that: (A) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (B) there is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed. 14 See eg., p. 112 §2:22 in Police Misconduct Law and Litigation 3d, Michael Avery, David Rudovsky and Karen Blum, 2007, Thomson-West

About the author

Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is now a tenured Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in disciplinary cases, critical incidents, and employment matters. He is the author of Legal Issues in Homeland Security, Looseleaf Law Publications.